Date: 20041207
Docket: A-63-04
Citation: 2004 FCA 419
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Appellant
and
REGIONAL MUNICIPALITY OF YORK
and
CANADIAN TRANSPORTATION AGENCY
Respondents
Heard at Ottawa, Ontario, on December 7, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on December 7, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20041207
Docket: A-63-04
Citation: 2004 FCA 419
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Appellant
and
REGIONAL MUNICIPALITY OF YORK
and
CANADIAN TRANSPORTATION AGENCY
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on December 7, 2004)
[1] This is an appeal by Canadian National Railway Company ("CN") under subsection 41(1) of the Canada Transportation Act, S.C. 1996, c. 10, from a decision, dated September 10, 2003, in which the Canadian Transportation Agency ("CTA") apportioned to CN most of the cost of the work required to reconstruct a railway crossing following the widening of the road by the respondent, the Regional Municipality of York ("York").
[2] More particularly, CN argues that the CTA erred in law when it found that CN and York had not reached "an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing" for the purpose of section 16 of the Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.). The CTA itself may apportion the costs of the work only when the parties have been unable to negotiate such an agreement: subsection 101(4) of the Canada Transportation Act. If the CTA's finding that the parties had not reached an agreement relating to the apportionment of the costs is upheld, CN does not argue that the apportionment itself was erroneous in law.
[3] In our view, reasonableness simpliciter is the applicable standard of review. The question in dispute before the CTA was whether the existence of an agreement relating to apportionment could be inferred from orders, signed on behalf of York, for the purchase of goods and services required for the completion of the work. Also relevant to this question was the fact that, on two occasions, York had failed to sign documents acknowledging its responsibility to bear the cost of the work.
[4] Thus, the question in dispute involves the application of the statutory term "agreement" to the facts. Since CN does not allege that the CTA erred in the formulation of the relevant legal test, the question of whether the parties had reached an agreement relating to apportionment is one of mixed fact and law located, in this case, towards the fact end of the law-fact continuum.
[5] In our opinion, whether the existence of an agreement relating to apportionment can be inferred from documents and the conduct of the parties involved is within the expertise of the CTA. The Agency is charged with, among other things, the discretionary apportionment of costs for the maintenance of railway crossings, and is more familiar than the Court with the regulatory and industry contexts within which it makes the essentially factual determination of whether the parties have reached an agreement relating thereto.
[6] As for the statutory provisions regarding access to judicial review, the right of appeal to this Court, with leave, is limited to questions of law and jurisdiction. In our view, the CTA can be said to have erred on a question of law or jurisdiction when it found that the parties had not reached an agreement relating to apportionment, only if its conclusion is not rationally supportable on the facts before it.
[7] In our opinion, to characterize as "jurisdictional" the largely factual question of whether an agreement existed in this case does not warrant the adoption of a more searching standard of review: Metropolitan Toronto (Municipality) v. Canadian National Railway Co., [1998] 4 F.C. 506 at para. 11 (CA).
[8] We are of the view that the CTA's decision withstands the "somewhat probing examination" prescribed by the reasonableness simpliciter standard of review. It was reasonable for it to find that the purchase orders signed on behalf of York for goods and services required for the completion of the work, including three in which CN was the vendor, did not constitute agreements relating to the apportionment of the costs. York's willingness to agree to fund the work initially by signing purchase orders is explicable by its desire to get the job done without further delay.
[9] The CTA's conclusion that there was no agreement relating to apportionment is further supported by the fact that York twice failed to sign documents (a letter of acknowledgement of responsibility for the costs and a standard form agreement on apportionment) that were put to York on behalf of CN, both before and after it signed the purchase orders.
[10] On the basis of all these facts, it was reasonably open to the CTA to find that there was no agreement relating to the apportionment of the cost of the reconstruction of the crossing following the widening of the road, and that it could therefore exercise its jurisdiction under subsection 101(3) of the Canada Transportation Act to make an apportionment.
[11] CN also argued that York was estopped by its conduct (especially the issuing of the purchase orders) from denying that it had undertaken to bear ultimate responsibility for the cost of the work, and that the CTA failed even to deal with this argument in its reasons.
[12] We do not agree. In our view, the CTA implicitly rejected the estoppel argument when it found that, upon its examination of "all of the circumstances of the case", no agreement existed, and when, immediately after making this finding, it stated:
The Agency further finds that CN had no reasonable grounds to believe that the applicant would accept responsibility for all costs. [Emphasis added]
We are not persuaded that, in so concluding, the CTA committed a reversible error.
[13] For these reasons, the appeal will be dismissed with costs.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-63-04
STYLE OF CAUSE: Canadian National Railway Company v. Regional Municipality of York et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 7, 2004
REASONS FOR JUDGMENT OF THE COURT: Linden, Evans, Malone JJA.
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
|
Mr. Gilles B. Legault |
FOR THE APPELLANT |
|
Mr. J. Colin Grant |
FOR THE RESPONDENT (Regional Municipality of York) |
|
Mr. Gino Grondin
|
FOR THE RESPONDENT (Canadian Transportation Agency) |
SOLICITORS OF RECORD:
|
Montreal (Quebec) |
FOR THE APPELLANT |
|
Willms & Shier Toronto, Ontario
Canadian Transportation Agency Gatineau, Quebec |
FOR THE RESPONDENT (Regional Municipality of York)
FOR THE RESPONDENT (Canadian Transportation Agency) |